Gujarat High Court
Chief Officer Anand Nagarpalika vs Nareshbhai Rameshbhai Harijan on 30 January, 2024
NEUTRAL CITATION
C/SCA/16563/2023 JUDGMENT DATED: 30/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16563 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
CHIEF OFFICER ANAND NAGARPALIKA
Versus
NARESHBHAI RAMESHBHAI HARIJAN
==========================================================
Appearance:
MR YOGI K GADHIA(5913) for the Petitioner(s) No. 1,2
MR UT MISHRA(3605) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 30/01/2024
ORAL JUDGMENT
1. Rule returnable forthwith. Mr.U.T.Mishra, learned
advocate waives service of Rule on behalf of respondent No.1.
NEUTRAL CITATION
C/SCA/16563/2023 JUDGMENT DATED: 30/01/2024
undefined
2. The petitioner- Nagarpalika has filed this petition
challenging an award dated 03.06.2023 of Labour Court, Anand
in Reference (T) No.3 of 2015, wherein Nagarpalika was
directed to reinstate respondent-workman to his original post
with continuity of service.
3. Facts, in brief referred in the petition are as under:
The respondent-workman was working as Sweeper with
the Nagarpalika from 1998 and terminated on 26.05.2005.
Along with respondent, other 8 workmen were also terminated
on 26.05.2005 and therefore all nine workmen had raised
dispute individually before the Labour Court, Anand
challenging their termination. The references were registered
as Reference (T) No. 1 to 9 of 2015. The reference in case of
respondent herein was registered as Reference (T) No. 3 of
2015.
The Labour Court upon adjudication in cases of other 8
workmen, partly allowed the references by an award dated
30.12.2019, directing the petitioner to reinstate them with
continuity of service and 20% back wages. The award dated
30.12.2019, in cases of all 8 workmen (except present
respondent) was challenged by Nagarpalika before this Court
and this court by decision dated 30.03.2021 reported in 2022
LLR 42, quashed the award qua back wages and confirmed
reinstatement. Since the respondent-workman did not
participate in the proceedings and did not file his statement of
claim, his reference was dismissed for non-prosecution by an
order dated 31.03.2018.
Subsequently, in the year 2020, the respondent filed
application dated 27.02.2020, seeking restoration with delay
NEUTRAL CITATION
C/SCA/16563/2023 JUDGMENT DATED: 30/01/2024
undefined
condonation application. The Labour Court by an order dated
18.01.2021 allowed the application seeking condonation of
delay and by an order dated 17.07.2021 allowed restoration.
The workman thereafter filed statement of claim in August
2021. The Labour Court Anand thereafter upon adjudication
allowed the reference by an award dated 03.06.2023, directing
Nagarpalika to reinstate workman to his original post with
continuity of service. Aggrieved by the award dated
03.06.2023, the present petition is filed.
4. Heard Mr.Yogi Gadhia, learned advocate for the
petitioner and Mr.U.T.Mishra, learned advocate for the
respondent No.1- workman.
5. Mr.Yogi Gadhia, learned advocate for the petitioner
submitted that the award of the Labour Court, Anand dated
03.06.2023 in Reference (T) No.3 of 2015 is erroneous on the
following grounds:
5.1 For the termination of the year 2005, the dispute was
raised and registered as Reference (T) No. 3 of 2015. The same
was rejected by an order dated 31.03.2018, for want of
prosecution. No statement of claim was filed in Reference
(T)No. 3 of 2015. The restoration application along with delay
was filed in the year 2020, which is admittedly after the
award dated 30.12.2019 in cases of other 8 workmen, whose
references have been registered as Reference No.1,2 and 4 to 9
of 2015. Thus, for the reference challenging an illegal
termination of the year 2005, the statement of claim was filed
in the year 2021 i.e. after a delay of more than 15 years. This
NEUTRAL CITATION
C/SCA/16563/2023 JUDGMENT DATED: 30/01/2024
undefined
being stale dispute the award of the Labour Court is erroneous
and workman cannot be treated at par with other workmen of
Reference (T)No. 1,2 and 4 to 9 of 2015.
On delay, learned advocate relied upon following decisions:
(i) 2015(15) SCC 1 - Prabhakar Vs. Joint Director Sericulture
Department (Para 34 to 36, 39)
(ii) SCA 54 of 2021 dated 18.01.2024- S.T.Karmachari Union Vs.
Divisional Controller (Para 5.2, 6, 7 and 15)
5.2 Reliance placed by the workman in case of other
workmen, who were similarly situated, is of no consequences,
because in those cases, references were filed in the year 2015.
The statements of claims were filed by the respective workmen
in the year 2015 and references were decided on 30.12.2019.
In the present case, though the dispute was raised in the year
2015, the respondent did not file statement of claim till
decision on other references. Therefore, Labour Court by an
order dated 31.03.2018, rejected the reference of workman
(Reference No.3 of 2015).
In case of other references, i.e. Reference (T) Nos.1 & 2
and 4 to 9 of 2015 the Labour Court by an award dated
30.12.2019, directed reinstatement with continuity of service
with 20% backwages. The present respondent since had not
participated in the proceedings till the references of other
workmen were disposed on 30.12. 2019, the respondent being
fence sitter would not be entitled to parity with other
workmen. Reliance is placed on the decision of Hon'ble
Supreme Court in the case of Chairman/ Managing Director
NEUTRAL CITATION
C/SCA/16563/2023 JUDGMENT DATED: 30/01/2024
undefined
U.P. Power Corporation Ltd. Vs. Ram Gopal reported in
2021(13) SCC 225.
5.3 Further, after rejection of Reference by an award dated
31.03.2018, the respondent filed an application seeking
restoration along with delay condonation application and the
same was allowed. However, in the second round of litigation,
Labour Court has erred in not considering that the workman
cannot claim parity with the other workmen, whose references
were partly allowed by award dated 30.12.2019 on the ground
that despite opportunities, the respondent-workman did not
participate in the proceedings and more particularly failed to
file statement of claim. The proceedings can be stated to be
initiated once the dispute is registered and statement of claim
is filed by the workman.
5.4 The finding of the Labour Court that the workman was
working since last 12 years and terminated on 26.05.2005 is
contrary to the deposition of the workman, where workman in
his cross-examination had stated that he was working since
1998. Thus, there is non-application of mind by the Labour
Court.
5.5 On the aspect of belated adjudication of the reference, at
the best, the case of the workman could be considered for
lumpsum compensation and not for reinstatement. In support
of his submission, he relied upon decision of the Hon'ble
Supreme Court in the case of B.S.N.L. Vs. Bhurumal reported
in 2014(7) SCC 177.
He therefore submitted that the award deserves to be
NEUTRAL CITATION
C/SCA/16563/2023 JUDGMENT DATED: 30/01/2024
undefined
quashed and set aside.
6. On the other hand, Mr.U.T.Mishra, learned advocate for
respondent No.1 submitted that the respondent with other 8
workmen raised disputes challenging their termination,
registered as Reference Nos.1 to 9 of 2015. Labour Court
adjudicated the said References except Reference No.3 of 2015.
In other References, Labour Court while partly allowing the
references granted reinstatement with continuity of service and
20% backwages. Award of the Labour Court in the case of
other workmen was challenged by the petitioner before this
Court. This Court in the petitions, set aside the direction of
grant of 20% backwages and confirmed the award qua
reinstatement with continuity of service.
6.1 Since, other workmen were reinstated and granted
continuity of service, the respondent being similarly situated,
also deserves equal treatment and therefore there is no error in
giving similar direction. There is no error and the award does
not call for any interference.
6.2 Further, the ground of delay was not raised before the
Labour Court and therefore, it is not open for the petitioner to
raise this ground here. Most importantly, Labour Court held
that there was breach of section 25-F, G and H of Industrial
Disputes Act and in view of breach of Sections 25-F, G and H
of the Act, delay is to be ignored. There being no error in the
award, no interference called for and therefore, this petition
may be rejected.
NEUTRAL CITATION
C/SCA/16563/2023 JUDGMENT DATED: 30/01/2024
undefined
6.3 In support, he relied upon the decision of Hon'ble
Supreme Court in the case of Prem Ram Vs. Managing
Director, Uttarakhand Pey Jal & Nirman Nigam, Dehradun
reported in 2015(11) SCC 255. (Para -8 and 9)
7. Heard learned advocates for the respective parties. Upon
re-visitation of the facts, it is noticed that for the termination
dated 26.05.2005, respondent along with other 8 workmen
raised disputes registered as Reference (T) Nos.1 to 9 of 2015
before Labour Court, Anand. Except Reference (T) No.3 of
2015, rest of the References were adjudicated and partly
allowed vide award dated 30.12.2019. Admittedly, Reference of
respondent registered as Reference (T) No.3 of 2015 was
dismissed for want of prosecution on 31.03.2018. Thereafter,
the References of other workmen were adjudicated and an
award dated 30.12.2019, was passed directing reinstatement
with continuity of service with 20% backwages. The award
dated 30.12.2019 was challenged by the petitioner before this
Court and this Court quashed and set aside 20% backwages
and confirmed the order of reinstatement with continuity of
service. Pursuant to this court's directions, those workmen
were reinstated and granted continuity of service.
7.1 Admittedly, after publication of the award dated
30.12.2019, an application seeking restoration of reference
along with delay condonation application was filed by
respondent on 27.02.2019. It cannot be ignored that in
Reference (T) No.3 of 2015, no statement of claim was filed by
the workman till 2021. The initiation of proceedings, was done
after an award dated 30.12.2019 in cases of other workmen.
NEUTRAL CITATION
C/SCA/16563/2023 JUDGMENT DATED: 30/01/2024
undefined
Therefore, undisputedly he was not vigilant about his rights
and therefore he would not be entitled for parity with others.
7.2 The Hon'ble Supreme Court in the case of Prabhakar
(Supra) for belated raising of dispute, has held as under:
"34. Thus, a dispute or difference arises when
demand is made by one side (i.e. workmen) and
rejected by the other side (i.e. the employer) and
vice versa. Hence an 'industrial dispute' cannot be
said to exist until and unless the demand is made
by the workmen and it has been rejected by the
employer. How such demand should be raised and
at what stage may also be relevant but we are not
concerned with this aspect in the instant case.
Therefore, what would happen if no demand is
made at all at the time when the cause of action
arises? In other words, like in the instant case,
what would be the consequence if after the
termination of the services of petitioner on April 01,
1985, the petitioner does not dispute his
termination as wrongful and does not make any
demand for reinstatement for number of years? Can
it still be said that there is a dispute? Or can it be
said that workmen can make such demand after
lapse of several years and on making such demand
dispute would come into existence at that time. It
can always be pleaded by the employer in such a
case that after the termination of the services when
the workmen did not raise any protest and did not
demand his reinstatement, the employer presumed
that the workmen has accepted his termination and,
therefore, he did not raise any dispute about his
termination. It can be said that workmen, in such a
case, acquiesced into the act of the employer in
terminating his services and, therefore, accepted his
NEUTRAL CITATION
C/SCA/16563/2023 JUDGMENT DATED: 30/01/2024
undefined
termination. He cannot after a lapse of several years
make a demand and then convert it into a 'dispute'
what had otherwise become a buried issue."
7.3 In one more decision, the Hon'ble Supreme Court in the
case of Ram Gopal (Supra), has held as under:
"14 Finally, the prolonged delay of many years
ought not to have been overlooked or condoned.
Services of the Respondent were terminated within
months of his appointment, in 1978. Statedly, the
Respondent made a representation and served
UPPCL with a legal notice in 1982, however such
feeble effort does little to fill the gap between when
the cause of action arose and he chose to seek its
redressal (in 1990).
15 Seen from a different perspective also, it is
clear that the Respondent has shown little concern
to the settled legal tenets. Even a civil suit
challenging termination of services, if filed by the
Respondent, would have undoubtedly been barred
by limitation in 1990. In a similar situation where
the appellant belatedly challenged the promotion of
his junior(s), this Court in P.S. Sadasivaswamy v.
State of Tamil Nadu, 1975 1 SCC 152 held as
follows:
"2. ... if the appellant was aggrieved by it he
should have approached the Court even in the
year 1957, after the two representations made
by him had failed to produce any result. One
cannot sleep over the matter and come to the
Court questioning that relaxation in the year
1971. ... In effect he wants to unscramble a
scrambled egg. It is very difficult for the
Government to consider whether any
NEUTRAL CITATION
C/SCA/16563/2023 JUDGMENT DATED: 30/01/2024
undefined
relaxation of the rules should have been made
in favour of the appellant in the year 1957.
The conditions that were prevalent in 1957,
cannot be reproduced now. .... It is not that
there is any period of limitation for the Courts
to exercise their powers under Article 226 nor
is it that there can never be a case where the
Courts cannot interfere in a matter after the
passage of a certain length of time. But it
would be a sound and wise exercise of
discretion for the Courts to refuse to exercise
their extraordinary powers under Article 226
in the case of persons who do not approach it
expeditiously for relief and who stand by and
allow things to happen and then approach the
Court to put forward stale claims and try to
unsettle settled matters......"
7.4 In relation to decision in the case of Prem Ram (supra)
relied upon by learned advocate for the respondent, this Court
is of the opinion that the said decision was rendered in
relation to regularisation of work-charged employees and daily
wagers. Regularisation was granted pursuant to the
Regularisation Rules,2011 of the Uttarakhand Government and
therefore, the said decision would not be applicable to the
facts of the present case.
8. From the award dated 30.12.2019, it is noticed that the
Labour Court had held that there was breach of Section 25-F,
G and H of the Act. Upon breach of Section 25-F, G, and H of
the Act, the workman would be entitled for reinstatement.
However, delay in filing the statement of claim and initiation
of the dispute by the workman, cannot be ignored. Considering
NEUTRAL CITATION
C/SCA/16563/2023 JUDGMENT DATED: 30/01/2024
undefined
the delay from the year 2015 to 2020 and considering the
initiation of proceedings after having the award of Labour
Court, in case other workmen on 30.12.2019, it would not be
out of place to treat the workman as fence sitter. Therefore, in
the opinion of this Court, the workman would be entitled for
reinstatement but would not be entitled for continuity of
service for the period from 2015 to 2020. The award of the
Labour Court dated 03.06.2023 is therefore deserves to be
modified in relation to grant of continuity of service. In view
of the above, award of the Labour Court, Anand dated
03.06.2023 in Reference (T) No.3 of 2015 is modified to the
following aspect:
"The petitioner- Nagarpalika is directed to reinstate
the respondent-workman, however, he shall not be
entitled for continuity of service for the period
from 2015 to 2020. The petitioner - Nagarpalika is
directed to reinstate the respondent-workman within
a period of six weeks from the date of receipt of
this order."
9. The award of the Labour Court is modified to the
aforesaid extent. This petition stands allowed to the aforesaid
extent. Rule is made absolute to the aforesaid extent. No Cost.
sd/-
(MAUNA M. BHATT,J)
DIPTI PATEL...
